|Will signed on behalf of testator|
The case of Barrett v Bum  EWHC 1247 Ch is interesting because of the comments on the nature of probate jurisdiction, and for the guidance it gives on signatures on behalf of a testator.
The testator, Martin, made a will in hospital three hours before he died, leaving everything to his sister Anne.
The will was witnessed by two nurses.
The will was challenged by those entitled on intestacy and was pronounced invalid by Mr. Justice Voss.
He found that Martin had capacity and knew and approved the contents of the will.
However, he found that the will was invalid because the signature was clearly not Martin’s.
Anne having died, her daughter, Honor, appealed.
She and the two nurses changed their story and claimed that the signature was a ‘guided’ signature.
They claimed that Anne had helped Martin sign because his hand was shaking too much for him to manage alone.
The handwriting expert said that the possibility that this was a guided signature could be ‘realistically disregarded’.
It was simply too fluent and showed no signs of stopping and starting.
Voss J considered the most likely explanation was that Anne actually signed the will at Martin’s direction, or with Martin touching her hand in some light or symbolic fashion.
A signature on behalf of the testator had not been pleaded and was contrary to the version of events the witnesses had given, although Honor had edged close to this by saying of her mother ‘between the two of them they signed the will’.
Section 9(a) of the Wills Act 1837 permits someone to sign on behalf of a testator, provided the act of signing is ‘in his presence and by his direction’.
The role of a probate court
Generally, the court will lean in favor of validating testamentary dispositions, wherever that can properly be done.
‘The judge in a probate action is concerned in an inquisitorial capacity to seek the truth as to what is indeed the testator’s true last testament, and accordingly is not bound by the maneuvers of the parties,’ per James Moby QC, sitting as a Deputy Judge in Kellick v Poultney  WTLR 41.
Although the evidence of the witnesses was clearly inaccurate and unreliable, Voss J said that criticism of witnesses who give unreliable evidence many years after the events in question is not particularly useful, unless it can be suggested that the evidence has been deliberately given falsely.
This was not the case here.
The law on signatures
Voss J summarized the law at paragraph 71 as follows:
i) A testator may either sign the will himself or direct another person to sign it on his behalf.
ii) If the testator directs another person to sign the will on his behalf and that person does sign the will on his behalf, in the presence of the two witnesses, the will is ‘signed’ by the testator within section 9(a), and no subsequent acknowledgement of his signature is necessary.
iii) If the testator chooses, instead of directing another to sign, to sign the will himself in the presence of the two witnesses, assisted by another person, the will is only validly signed in accordance with section 9(a) if the testator makes some positive and discernible physical contribution to the signing process, as opposed simply to abstaining from preventing the signing.
Given the fluency of the signature, it was clear that, even if Martin did have his hand on the pen at some stage, he did not make a sufficient contribution to the signing process to be regarded as having signed the will. It was signed by Anne.
Therefore, the question was whether it was signed at his direction. Voss J held that:
(a) When Martin failed to sign the will himself, he must have allowed Anne to take the pen from him and apply his name to the paper.
There is no evidence that he said anything at that stage, but the act of attempting to sign personally and failing to do so, having expressly said he wanted to make a will and expressly approved its contents, together with allowing Anne to sign on his behalf, can and should be taken as a direction by conduct to Anne to sign the will in those terms on his behalf.
He had tried and failed to do so himself.
(b) If Martin made an attempt to sign with Anne’s help but that attempt failed, it can be taken as further evidence of a wish to direct Anne to sign for him following his failed attempt or attempts.
Despite the fact that Martin was extremely physically unwell, there was no suggestion that he was not in possession of his mental faculties.
Voss J said it would be a denial of justice to him if his will were declared invalid without extremely good reasons.
Did the fact that the will was signed by a beneficiary cause the gift to fail?
There were no earlier decided cases on the point, so Voss J had to consider the matter from first principles.
Section 15 of the Wills Act 1837 makes a gift void if an attesting witness is the recipient.
Voss J said that this cannot be extended to persons signing at the direction of the testator.
Since the statute does not cover this extremely unusual situation, it was not proper to find that the gift to Anne was void on the basis of the signature.
The signature was, however, relevant when it came to consider the question of knowledge and approval.
In Barry v Bustling (1838) 2 Moo PC 480, Parke B had said: ‘If a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.’
Clearly, this should apply with additional force where a beneficiary signs on behalf of the testator.
It was necessary to scrutinize the facts carefully.
Voss J said that he had tried his best to do just that and was satisfied that ‘in the peculiar, some might say extraordinary, circumstances of this case’ Martin did know and approve the contents of the will.
He commented that legislation might be desirable to prevent signature by a beneficiary if it were a common occurrence, since it is plainly undesirable that beneficiaries should be permitted to execute a will in their own favor in any capacity.
The opinions expressed do not constitute investment advice and specialist advice should be sought about your specific circumstances.
Published on our website on July 13, 2011